Washington v. Murray

• Decision Date: 17 September 1993
• Docket Number: No. 92-4008,92-4008
• Citation: 4 F.3d 1285
• Parties: Earl WASHINGTON, Jr., Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of Corrections; Charles E. Thompson, Warden, Mecklenburg State Correctional Facility, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1285

4 F.3d 1285

Earl WASHINGTON, Jr., Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of Corrections; Charles E. Thompson, Warden Mecklenburg State Correctional Facility Respondents-Appellees.

No. 92-4008.

United States Court of Appeals Fourth Circuit.

Argued June 9, 1993.

Decided Sept. 17, 1993.

Eric M. Freedman, Hofstra University School of Law, Hempstead, NY, argued (Gerald T. Zerkin, Gerald T. Zerkin & Associates, Richmond, VA, Robert T. Hall, Hall, Markle, Sickels & Fudala, P.C., Fairfax, VA, on the brief), for petitioner-appellant.

John H. McLees, Jr., Office of the Atty. Gen., Richmond, VA, argued (Mary Sue Terry, Atty. Gen. of Virginia, Linwood T. Wells, Jr., Asst. Atty. Gen., Office of the Atty. Gen., on the brief), for respondents-appellees.

Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

WILKINSON, Circuit Judge:

This habeas case appears before us for the second time. In Washington v. Murray, 952 F.2d 1472 (4th Cir.1991) (Washington I ), we remanded for an evidentiary hearing on the sole issue of whether petitioner received ineffective assistance from his trial counsel because of counsel's failure to investigate and present certain forensic evidence. The district court conducted a hearing, considered the evidence, and found that petitioner had not received ineffective assistance of counsel. Because we agree that the omission of this ultimately inconclusive evidence did not prejudice the defendant, we affirm the district court's judgment.

I.

The factual background of this appeal has been set forth in Washington I, 952 F.2d at 1475. To summarize, a jury convicted petitioner Earl Washington, Jr. of the capital murder of Rebecca Lynn Williams. Mrs. Williams had been raped and repeatedly stabbed while in a bedroom of her apartment. Defendant, who has a general I.Q. in the range of 69, confessed no fewer than three times to the murder, and was convicted on the basis of these confessions and his acknowledgment that he owned a shirt linked to the crime scene.

The district court initially dismissed Washington's habeas petition in its entirety without a hearing. See id. at 1475-79. On remand, however, the court considered forensic evidence relating to five seminal fluid stains on a royal blue blanket found in Mrs. Williams' bedroom.

Neither the blanket nor any evidence about the stains were introduced at Washington's trial. Analysis of the stains indicated that four of them had been produced by a person with blood type A, PGM 1, while the fifth stain only could be identified as type A. ¹ Petitioner has type O blood, PGM 2-1, and he is a secretor. ² The victim was blood type A, PGM 1, and she was a secretor; her husband has type O blood, PGM 1, but he is a nonsecretor.

According to Washington's theory of the evidence presented at the hearing, he could not have produced the seminal fluid stains on the blanket because he is the wrong blood type. He also maintains that the victim's husband could not have left the stains because he too is the wrong blood type, thus indicating the presence of a third male in the bedroom at some point. Petitioner argues that it was ineffective assistance for his trial counsel not to have grasped the significance of this evidence and introduced it to support a defense that this third male raped and murdered Mrs. Williams.

To buttress this theory, petitioner introduced at the hearing the testimony of his trial counsel and two forensic experts. Trial counsel testified that he received from the prosecution a report containing analysis of the various stains on the blanket, but that he did not realize from his review of the report that Washington could not have left the stains. Counsel never consulted with experts to have the report explained to him.

Petitioner's first expert at the federal habeas hearing, Dr. Henry C. Lee, Director of the Connecticut State Police Forensic Science Laboratory, testified that if the stains were pure semen stains, they could not have been left by either petitioner or Mr. Williams. Despite having examined only the forensic report, not the stains themselves, Lee also testified that it was equally possible that the stains were pure semen as that they were a mixture of semen and vaginal fluid. Dr. Lee stated that in his opinion the stains were not a mixture because there was no indication in the report that the stains contained vaginal epithelial (or skin) cells. On cross, Dr. Lee admitted that he could not state with certainty that the stains included no vaginal fluid, and that if the stains were a mixture, Mr. Williams could have contributed to them. Lee's testimony also indicated that there was no evidence of blood in the five seminal fluid stains. Petitioner's second expert, Dr. David Alan Stoney of the University of Illinois at Chicago, largely supported Dr. Lee's testimony. Stoney testified, however, that even if a test had indicated a lack of epithelial cells in the stains, such a result did not preclude the presence of vaginal fluid.

The prosecution's theory of the evidence was that the victim's husband left the seminal fluid stains on the blanket. Even though Mr. Williams has blood type O, PGM 1, and the stains indicated blood type A, PGM 1, the seminal fluid still could have been his because, as a nonsecretor, his blood antigens do not appear in his semen for purposes of ABO typing. Under the prosecution's theory, Mr. Williams would have left stains mixed with his wife's vaginal fluid in the process of regular intercourse with his wife. Because Mrs. Williams was a secretor, her blood antigens would dictate what ABO blood type the stains indicated--her type A effectively "masking" his type O. Because Mr. and Mrs. Williams shared the PGM 1 blood type, the type A, PGM 1 result from the stains is consistent with Mr. Williams having contributed the semen.

To buttress its theory, the prosecution offered the testimony of Mr. Williams and two experts. Mr. Williams testified that he had been having sex with his wife three to five times a week for the three months prior to her murder and that the blue blanket was normally on their bed.

Deanne Dabbs of Virginia's Division of Consolidated Laboratory Services, who analyzed the stains and prepared the forensic report, testified in support of the view that vaginal fluid from Mrs. Williams, not seminal fluid, dictated the blood type. She testified that based on her experience of examining "thousands" of such stains, these five stains appeared to be mixtures of vaginal and seminal fluids that were "distinctly different in appearance from a pure seminal fluid stain." Dabbs testified that she routinely did not test stains for the presence of epithelial cells because such cells indicate only that a variety of bodily fluids could be present. She acknowledged that no scientific test could positively determine whether a stain contained vaginal as well as seminal fluid, but stated that there was no evidence that these stains were not a mixture of fluids. She also stated that she would never testify that these stains were pure seminal fluid because the amount of sperm cell material in them, as compared to the amount of sperm cells she might see in a pure semen stain, supported her conclusion of admixture. Ms. Dabbs further testified that a fluid sample from the victim's vaginal vault indicated sperm in a "bloody mixture," while as Dr. Lee and Dr. Stoney had indicated, no evidence suggested the presence of blood in the five seminal stains on the blanket. Dabbs also testified that in her experience it was "rather unusual" to find five semen stains produced in the course of a single sexual assault; more typically one or two stains might be found. According to Dabbs' analysis, Mr. Williams could well have contributed the seminal fluid in these stains even though Mrs. Williams' fluid ultimately determined the blood type. Both sides stipulated that the opinions and conclusions of Peter Milone, Assistant Director of the Division of Consolidated Laboratory Services, would have agreed with those of Dabbs.

Confronted with this scientific testimony, the district court found that the forensic evidence was "inconclusive." The court noted that if the stains were pure seminal fluid, then neither petitioner nor Mr. Williams could have left them. The court, however, credited the testimony of Ms. Dabbs, the only expert actually to have seen the stains prior to testifying, that their appearance "was consistent with a mixture of vaginal and seminal fluid." Because the "presence of vaginal fluid" in the mixture could "mask the blood test results of the seminal stains," the court found that the forensic evidence provided "no guidance as to the identity of the rapist," but observed that "[i]f anything, the evidence leads to the conclusion that the stains were on the blanket prior to the murder and, in all probability, were produced by the victim and her husband."

Applying the standards for determining ineffective assistance of counsel from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the district court held that petitioner suffered no prejudice from his trial counsel's failure to pursue evidence about the stains because the evidence did not establish "a reasonable probability that petitioner was not the rapist." The court also went on to hold that trial counsel's performance was not deficient because counsel had made a "strategic choice" not to present this line of evidence. According to the district court, counsel chose not to present the evidence in order "to keep the victim's husband from testifying" in rebuttal and thus to minimize "the jury's sympathy toward the victim's family."

Finding that neither Strickland prong was met, the district court concluded that petitioner had not received ineffective assistance of counsel and dismissed his claim. This appeal followed.

II.

Petitioner argues that the...